On the “Separation of Church and State”

There are a lot of firm opinions when it comes to Religion, the State, and the separation thereof.  It has been front and center in controversies long ongoing and recently fomented.  It has been referred to as a founding principle of our nation.  To the extent that most currently seem to believe both that the State may not dictate to the various religions and that the religious may not influence the State, there is little (none that I can find) from the first hundred and fifty years under the Constitution to support that position.

There is of course even less to support the notion some seem to hold that the Government may indeed dictate to the various religious groups while the members of those religious groups may not influence the State.

First, a review.

The Declaration of Independence stakes its claim of authority on Natural Law and Deism.  [emphasis added]

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights…

Not much question there as to the source of authority from which “rights,” including the right to revolt against one’s sovereign, descends.

What does the Constitution have to say on the matter?

Here we run into a problem right off the bat.  The Preamble to the Constitution discusses the desired outcomes of the Government it establishes, it makes no mention of it’s source of authority other than it’s emphasis on “We the People.”

 

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

 

So, no explicit help there.  The Government created by the Constitution does so as a limited grant of power by The People.  Nor is there any mention of religion in the body of the Constitution (less amendments) as adopted.

An important observation at this point is that the Constitution created a Federal system.  In so doing it grants certain limited powers to the Federal Government, while reserving the remaining powers and rights to the States and the People.

Having not granted the Federal Government any power over religious practice the Federalists considered the issue settled.  The anti-Federalists were less assured (in retrospect, they were wise to be) and insisted on a set of amendments which were adopted at the same time and which became known as the Bill of Rights.

The pertinent part of the First Amendment reads:

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…

 

The plain text prohibits the Federal Government from making laws which would establish (make an official arm of the Government) a religion or interfere with the People freely practicing their (respective) religions.  Numerous states (including Virginia, Massachusetts, and Connecticut) had established churches predating the Constitution which continued as established churches under the Constitution (though all such were eventually disestablished by the States).

Thus there is no explicit support in the Constitution for a position that the People should be barred from imposing their religious principles upon the Government which they created and granted strictly limited powers to.

The phrase (“a wall of separation between church and state”) itself arises from an 1802 letter by then President Thomas Jefferson replying to a letter from the Danbury Baptist Association of Connecticut (one of the states which still had an established religion in 1802, which states in pertinent part):

 

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people [The Constitution and Bill of Rights] which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

 

This too tends to support the thesis that the “wall of separation” defends the People’s “rights of conscience” versus prohibiting the exercise of that conscience in influencing government.

As for judicial precedent, the Supreme Court ruled on the issue three times in the first 150 years under the Constitution:

 

Vidal Et Al v. Girard’s Executors (43 U.S. 127 (1844))

Christianity is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or the injury of the public.

Where can the purest principles of morality be learned so clearly or so perfectly as from the New Testament?

 

Holy Trinity v. United States (143 U.S. 457 (1892))

There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation.  This is a Christian nation.

 

United States v. Macintosh (283 U.S. 605 (1931))

We are a Christian people…according to one another the equal right of religious freedom, and acknowledging with the reverence the duty of obedience to God.”

 

So, where then does this hard, bi-directional “wall” come from?

 

Everson v. Board of Education (330 U.S. 1 (1947))

We could not approve the slightest breach [of that separation of church and state].

 

So, what had been a well established series of precedents over a span of 153 years, and which was fully supported by the language of the Constitution and the Declaration of Independence, were overturned by a single case.

One of the key justifications for this exception to stare decisis (a judicial obligation to observe and uphold prior judicial precedent) was the intervening adoption of the Fourteenth Amendment (in pertinent part):

 

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Thus a legal challenge to a tax providing funding for transportation to schools (both public and private, secular and parochial) gave birth to the rigid “wall of separation between church and state” and extended the Constitutional concept of incorporation of Federal rights and privileges (following Gitlow v. New York, 268 U.S. 652 (1925)) upon the several States.

From a tiny seed has grown this wall of shrubbery, and it’s long past time it got trimmed back.

 

 

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